Does McCain Endorse the Unitary Executive Theory?
Sunday June 8, 2008
More About: John McCain on Civil Liberties | The Unitary Executive Theory
Executive branch power has not historically been a partisan issue. Bill Clinton famously expanded it during his two terms, even going so far as saying that presidential status should render someone immune from civil lawsuits. So until yesterday, I had hope--a great deal of hope--that with the nominations of Barack Obama and John McCain, we could take comfort that the next president, regardless of party, would reduce the power of the executive branch and restore checks and balances.
Unfortunately, the Bush administration has ostensibly had such a drastic effect on the Republican Party that it is now no longer acceptable to be a national Republican candidate who opposes executive power. There was some hint of this during Republican primary debates, as Mitt Romney and Rudy Giuliani went back and forth on who was more willing to torture and more willing to ignore federal due process. McCain, to his credit, appeared at the time to be above the fray. While he never condemned the Bush administration's use of surveillance technology as such, he did speak out strongly against the use of torture and called for an end to the illegal detentions at Guantanamo Bay.
Now he appears to be backtracking. There was some early evidence of this in March, when he opposed an anti-torture bill and argued that the applicability of anti-torture legislation depends upon a "good-faith interpretation" by the commander-in-chief, and that an administration may "[choose] to apply" broad or narrow analyses or interpretations to federal regulations.
Now he appears to have an equally broad concept of executive power with respect to the issue of surveillance. In Friday's New York Times, a campaign advisor has spoken out in favor of the Bush administration's domestic surveillance program, which by any measure violated the Federal Intelligence Surveillance Act of 1978, and suggested that McCain supports it as well. While a McCain spokesman claims that his views on the matter have not changed, the McCain campaign has not stated that the surveillance violated the Act or fell outside of presidential powers. Indeed, in a previous interview quoted in the New York Times article, McCain seemed reluctant to say that presidential power can actually be restricted by Congress:
This might or might not be important on a short-term basis with respect to specific issues, such as torture, about which Obama and McCain essentially agree. But the growth of executive power represents a 28-year shift that needs to be reversed, or at least mitigated, as soon as possible. If McCain has embraced the unitary executive theory, even if he does not intend to abuse it, then substantial executive branch reform will not be possible under his administration.
Over the coming months, McCain's views on the limits of presidential power should become more clear. From a civil liberties perspective, his position on this issue may be the most important of his campaign.
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Unfortunately, the Bush administration has ostensibly had such a drastic effect on the Republican Party that it is now no longer acceptable to be a national Republican candidate who opposes executive power. There was some hint of this during Republican primary debates, as Mitt Romney and Rudy Giuliani went back and forth on who was more willing to torture and more willing to ignore federal due process. McCain, to his credit, appeared at the time to be above the fray. While he never condemned the Bush administration's use of surveillance technology as such, he did speak out strongly against the use of torture and called for an end to the illegal detentions at Guantanamo Bay.
Now he appears to be backtracking. There was some early evidence of this in March, when he opposed an anti-torture bill and argued that the applicability of anti-torture legislation depends upon a "good-faith interpretation" by the commander-in-chief, and that an administration may "[choose] to apply" broad or narrow analyses or interpretations to federal regulations.
Now he appears to have an equally broad concept of executive power with respect to the issue of surveillance. In Friday's New York Times, a campaign advisor has spoken out in favor of the Bush administration's domestic surveillance program, which by any measure violated the Federal Intelligence Surveillance Act of 1978, and suggested that McCain supports it as well. While a McCain spokesman claims that his views on the matter have not changed, the McCain campaign has not stated that the surveillance violated the Act or fell outside of presidential powers. Indeed, in a previous interview quoted in the New York Times article, McCain seemed reluctant to say that presidential power can actually be restricted by Congress:
Mr. McCain was asked [in a December 2007 Boston Globe interview] whether he believed that the president had constitutional power to conduct surveillance on American soil for national security purposes without a warrant, regardless of federal statutes.The closest he comes to stating that FISA is binding on the president is when he speaks of whether the president has a "right to disobey" federal statutes. But his answer leaves open the possibility that--as was true in the case of torture--he's speaking of moral rights (the word he initially used was "obligation"), not legal rights. If that's the case, then the difference between Bush and McCain is not so much over whether or not the president has unitary executive power, but rather how each of them might choose to exercise that power.
He replied: "There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."
Following up, the interviewer asked whether Mr. McCain was saying a statute trumped a president’s powers as commander in chief when it came to a surveillance law. "I don’t think the president has the right to disobey any law," Mr. McCain replied.
This might or might not be important on a short-term basis with respect to specific issues, such as torture, about which Obama and McCain essentially agree. But the growth of executive power represents a 28-year shift that needs to be reversed, or at least mitigated, as soon as possible. If McCain has embraced the unitary executive theory, even if he does not intend to abuse it, then substantial executive branch reform will not be possible under his administration.
Over the coming months, McCain's views on the limits of presidential power should become more clear. From a civil liberties perspective, his position on this issue may be the most important of his campaign.
See also:
Comments
Te president has no legal authority to violate treaties. He has no legal authority to suspend habeas corpus, although the Constitution is ambiguous on this. This rogue president is acting like the old KGB. Either we believe in the rule of law or we believe in unlimited world-wide dictatorship. We are a signatory of the UN treaty. We gave up once and for all, any right we might have had to engage in aggression. We have not consented to the ICC treaty or the anti-genocide convention, but neither had Serbia and Ruanda, and their former leaders were dragged off to Holland to be tried, convicted, and imprisoned.
Were I G.W. Bush I would concentrate on clearing brush in Crawford, Texas, once he leaves office, or once abroad he is likely to be seized, tried, and convicted for his war crimes and crimes against peace. No sane president would follow Bush’s practices, unless he wishes to live in fear the rest of his life.